City of St. Louis v. Kellman

• Decision Date: 07 June 1911
• Citation: 235 Mo. 687,139 S.W. 443
• Parties: CITY OF ST. LOUIS v. KELLMAN.
• Court: Missouri Supreme Court

139 S.W. 443

235 Mo. 687

CITY OF ST. LOUIS v. KELLMAN.

Supreme Court of Missouri.

June 7, 1911.

Motion to Rehear Stricken from Files July 1, 1911.

1. MUNICIPAL CORPORATIONS (§§ 116, 122) — CITY ORDINANCE — VALIDITY — PRESUMPTIONS — REPEAL.

A city ordinance is of presumptive validity, and is repealed only by a subsequent ordinance repealing it in express terms, or by necessary implication, where total repugnancy exists, or, pro tanto, where partial repugnancy exists, or total or partial, where the whole or part of the subject-matter of the former is covered by the later and revising regulation.

2. STATUTES (§§ 152, 159) — "REPEAL" — "ANNUL" — "CANCEL" — "REVERSE" — "ABOLISH."

The term "repeal" with reference to statutes means the abrogation of a previously existing law by a subsequent statute, which either declares that the former shall be revoked, or which contains provisions so irreconcilable with those of the earlier law that only one of the two can remain in force; the latter being an implied repeal, and the former an express repeal. The term "repeal" is synonymous with "annul," "cancel," "reverse," and "abolish," so that a statute or ordinance is repealed when it is destroyed, abolished, abrogated, canceled, annulled, recalled, or rescinded by a later one.

3. MUNICIPAL CORPORATIONS (§ 115) — ORDINANCE — "EXPRESS."

City Charter of St. Louis, art. 3, § 28, provides that no special or general ordinance which is in conflict or inconsistent with general ordinances of prior date shall be valid or effectual until such prior ordinance, or the conflicting parts thereof, are repealed by "express terms." Held, that "express" was used as an antonym for "implied," and as meaning directly; distinctly; not left to inference; exact; precise; and hence did not limit the method of repeal to an express statement that the matter of the prior ordinance was repealed, so long as the provisions of the later ordinance in some manner by reference terminated the operation of the former ordinance.

4. MUNICIPAL CORPORATIONS (§ 115) — ORDINANCE — REPEAL — "STRIKE OUT."

St. Louis City Ordinance No. 24,582 was entitled an ordinance to amend section 505 of the Revised Code of St. Louis by "striking out" said section and inserting in lieu thereof a new section, to be known by the same number, in relation to the sale and custody of skimmed milk, and providing penalties for the violation thereof, and then provided that section 505 was "amended by striking out" said section and inserting in lieu thereof the following new section bearing the same number, proceeding to provide a new standard for skimmed milk to be sold within the city. Held, that the term "strike aut" as so used meant to "force out"; to "blot out"; "to efface"; "to erase"; and as so construed connected itself with the definition of repeal; and hence there was a repeal of section 505 by express terms, within City Charter of St. Louis, art. 3, § 28, providing that an ordinance conflicting with general ordinances of prior dates shall not be valid until the prior ordinances, or the conflicting parts thereof, are repealed by express terms.

Valliant, C. J., dissenting.

In Banc. Appeal from St. Louis Court of Criminal Correction; Benj. J. Klene, Judge.

Ewald Kellman was convicted of violating the St. Louis milk ordinance, and he appeals. Affirmed.

Wm. L. Bohnenkamp and E. F. Stone, for appellant. Lambert E. Walther and A. H. Roudebush, for respondent.

LAMM, J.

This case is a companion with a series, viz., City of St. Louis v. Ameln, 139 S. W. 429, City of St. Louis v. Fred Meyer, 139 S. W. 438, and other cases just handed down and not yet officially reported, in which the appeals are intended to test the validity of one or another phase of the milk ordinances of St. Louis. Kellman was convicted for violating Ordinance 24,582, fined $25, and appealed here.

The substance of the complaint against him is that he, on the 17th day of November, 1909, in violation of Ordinance 24,582 (pleaded by its title, number, and date of approval, viz., October 23, 1909) did have in his possession and carry at a named place in said city, with intent to sell and expose for sale, skim milk showing on analysis less than 8.5 per cent. milk solids, not fat, to wit, 7.74 per cent. Ordinance 24,582 follows:

"An ordinance to amend section five hundred and five, article five, chapter eleven, of the Revised Code of St. Louis, nineteen hundred and seven, by striking out said section and inserting in lieu thereof a new section to be known by the same number, in relation to the sale and custody of skimmed milk and providing penalties for the violation thereof. Be it ordained by the municipal assembly of the city of St. Louis as follows: Section one. Section five hundred and five, article five, chapter eleven, of the Revised Code of St. Louis, nineteen hundred and seven, is hereby amended by striking out said section and inserting in lieu thereof the following new section bearing the same number. Section five hundred and five. Notwithstanding the provisions of section five hundred and one of the Revised Code of St. Louis, nineteen hundred and seven, milk from which a part or all of the cream has been removed and which is known as skimmed milk, may be lawfully sold as herein provided and not otherwise. a. No skimmed milk shall be sold, kept, offered or exposed for sale, stored, exchanged, transported, conveyed, carried or delivered or with such intent as aforesaid be in the care, custody, control or possession of any one, unless it show on analysis not less than: One. Nine and one-quarter per cent. of milk solids. Two. Eight and one-half per cent. of milk solids, not fat. * * * (Here follow clauses b, c, and d, immaterial here.) * * * e. Any person, persons, firm or corporation violating any of the provisions of this section, or who fails to comply with any of the regulations as provided for in this section, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than twenty-five dollars nor more than one hundred dollars for each and every offense."

Section 505 of the Revised Code of St. Louis 1907, reads:

"Sec. 505. The following regulations shall govern the sale of milk known as skimmed milk:

"First. All milk which contains not less than ten and five-tenths per cent. of total solids and one and five-tenths per cent. butter fat, which is of a specific gravity between one thousand and thirty-two and one thousand thirty-eight, which is free from foreign additions of any kind and any evidence of decomposition, which is stored, transported and delivered to purchasers at the temperature provided in this article for sweet milk, shall be known as skimmed milk, and may be lawfully sold as such under the following regulations."

The city through its inspector took a sample of skim milk from defendant's wagon, on the date and at the time and place mentioned in the complaint, had the same analyzed by the city chemist, who testified it showed on analysis only 7.74 per cent. of milk solids, not fat. It then read in evidence Ordinance 24,582, supra. Defendant objected to the introduction of the ordinance because in conflict with a prior general ordinance, and it failed to repeal the same "by express terms," as provided by the charter (article 3, § 28). Defendant read in evidence section 505, supra. The objection was overruled; defendant excepted and put in no other evidence.

The charter provision invoked (article 3, § 28, supra) reads: "Sec. 28. Numbering, Printing and Repeal of Ordinances. — * * * and no special or general ordinance, which is in conflict or inconsistent with general ordinances of prior date, shall be valid or effectual until such prior ordinance, or the conflicting parts thereof, are repealed by express terms."

(Nota bene: The groundwork was laid below, by motions overruled and exceptions saved, to review a series of questions, some of them disposed of in the Ameln and Meyer cases, and some of them presented in cases following.)

The question here is single, viz., Is Ordinance 24,582 invalid, for that it is violative of the charter in attempting a repeal of a former ordinance (section 505, supra) by implication?

There are certain familiar principles of law to keep in mind in disposing of the question in hand, viz.: Repeals are not favored by the law. As it is with statutes, so is it with ordinances; they are clothed, in the first instance, with presumptive validity....